Supreme Court Overturns Roe v Wade, Turning Issue Back to States

This story has been updated.

As expected, the Supreme Court Friday reversed the landmark 1973 Roe v Wade ruling that gave American women the constitutional right to an abortion, turning the reproductive health issue over to the states.

The decision was written by Justice Samuel Alito, who also wrote that the Constitution does not support the 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v Casey.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment,” he wrote.

Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan dissented.

Court watchers had been wondering if Chief Justice John Roberts would be able to craft a compromise, of sorts, that would create a narrower ruling, Politico reported this week.

Roberts, for his part, did not concur with a full overturning of Roe and filed a separate opinion, but even with his doubts, the vote was 6-3 for all practical purposes, aligning with the draft leaked last month.

Alito's full opinion was joined by Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Clarence Thomas. Kavanaugh and Thomas also filed concurring opinions.

The ruling in Dobbs v Jackson Women's Health Organization concerns whether Mississippi could ban abortion after 15 weeks. Mississippi had asked the court to explicitly overturn Roe v Wade, which set a fetal viability standard, generally meant to be between 24 and 28 weeks of pregnancy.

In the 5-4 decision in Planned Parenthood of Southeastern Pennsylvania v Casey, the high court upheld Roe, but it also allowed states to begin chipping away the precedent by allowing for more restrictions on abortion access, saying that restrictions were allowed as long as there was not an “undue burden.”

However, Alito wrote that the court had to consider “whether whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The Court concludes the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.”

He then went on to compare abortion, through the right of autonomy, to prostitution and illegal drug use.

In his concurring opinion, Thomas urged his fellow justices to take on other precedent-setting cases involving substantive due process:

• Griswold v Connecticut, regarding birth control
• Obergefell v Hodges, the right to gay marriage
• Lawrence v Texas, the right to engage in private, consensual sexual activity

Thomas, appointed to the court in 1991, is also the husband of Virginia “Ginni” Thomas, the conservative activist who is expected to speak with the House of Representatives’ January 6 committee regarding her role in trying to keep former President Donald Trump in power even after he lost the election to President Joe Biden in 2020, including the insurrection at the Capitol, in which 9 people died.

Early Friday afternoon, Biden spoke from the White House.

“Let’s be very clear—the health and life of women in this nation are now at risk,” he said.

He noted that in many states, restrictions begin today. The Guttmacher Institute has said that at least 26 states are poised to ban abortion in the wake of the ruling.

“It just, it just stuns me,” said Biden, who noted the far-reaching implications of the decision, including curtailing the ability for low-income women to obtain abortions, punishing doctors for providing health care, privacy implications, and other issues. He said it is “a sad day for the country in my view but it does not mean the fight is over.”

Lynn Fitch, the attorney general for Mississippi, which has the highest rate of infant mortality in the country, congratulated the court on its decision and said that "our work to empower women and promote life truly begins."

"The task now falls to us to advocate for the laws that empower womenlaws that promote fairness in child support and enhance enforcement of it, laws for childcare and workplace policies that support families, and laws that improve foster care and adoption," she said.

The dissenting justices signed their view "with sorrow." In it, they referenced the gun decision that was handed down Thursday, in which the court ruled 6-3 that the Second Amendment allows citizens in New York to carry a gun outside the home and that states are restricted in what types of gun laws they can enact.

Referring to Kavanaugh's opinion that the Constitution is “neutral” on the issue of abortion, they wrote, “would he say that the Court is being ‘scrupulously neutral’ if it allowed New York and California to ban all the guns they want?”

“The disruption of overturning Roe and Casey will therefore be profound. Abortion is a common medical procedure and a familiar experience in women’s lives,” they noted.

The ruling comes even as new data from the Guttmacher Institute show that abortion rates rose 8% from 2017 to 2020 despite efforts to restrict the availability of the procedure.

In the past several months, other states have moved to enact even more stringent laws; Oklahoma Republican Governor Kevin Stitt recently signed the first law in the country that bans all abortions with very narrow exceptions.

Reaction From Medical Groups

Major medical associations condemned the decision as an intrusive insertion of the government into the relationship between patients and their providers.

“States that end legal abortion will not end abortion—they will end safe abortion, risking devasting consequences, including patients’ lives,” said the American Medical Association (AMA). Last week, in anticipation of the decision as the current term of the court neared an end, the AMA voted to adopt a policy platform that aims to protect patients and providers, saying “it is a violation of human rights when government intrudes into medicine and impedes access to safe, evidence-based reproductive health services, including abortion and contraception.”

Other groups issuing statements included the American College of Obstetricians and Gynecologists (ACOG), the American College of Physicians, the American Academy of Pediatrics (AAP).

“The principle of shared decision-making is founded on respect for peoples’ expertise in their own bodies and lives and clinicians’ expertise in science and medicine,” ACOG stated. “There is no room within the sanctuary of the patient-physician relationship for individual lawmakers who wish to impose their personal religious or ideological views on others.

The decision means “carries grave consequences for our adolescent patients, who already face many more barriers than adults in accessing comprehensive reproductive healthcare services and abortion care,” said the AAP.